Can You Trademark Your Pot?

from the whoa dept

Kal Raustiala and Chris Sprigman, continuing their excellent blogging (soon to be in book form) about markets succeeding in absence of intellectual property, have taken a look at the question of whether or not different brands of marijuana can be covered by trademark. With the increasing legality of medical marijuana, it's not uncommon for different strands to get their own brands. However, as the two note, plant varieties cannot be trademarked, but you can build a brand on top of one. So, as an example, Fuji apples cannot be trademarked, because that's a variety -- but Rainier Brand Fuji Apples is a trademark.

Of course, if you were dealing with a pot brand rather than a variety, could you trademark it? Well, you don't need to register a trademark to get protections. There are common law trademarks which get you pretty far without registering -- though it doesn't appear that anyone's tested such a pot trademark in court. As for a registered trademark, the USPTO apparently created a medical marijuana category for trademarks... very, very briefly. And then someone apparently realized this might be a political nightmare and that category suddenly disappeared.

Amusingly, the pair note that someone did try to trademark "Marijuana" for a drink, but it was denied with a bit of moralizing from the PTO: "the term MARIJUANA refers to an illicit drug that is associated with illegal behavior and adverse health consequences. The proposed mark is therefore immoral or scandalous and thus unregistrable." Personally, I think it's kind of awesome to have a trademark rejected for being "scandalous." I'm impressed.

Either way, the end result is basically that there doesn't appear to be much in the way of legal protections for the various brands of pot that are found in medical marijuana dispensaries. While Raustiala and Sprigman don't get into it, it would seem like this creates another "pure" market to study, to see what happens in a brand-based market without trademark protections. Is copying of brand names common? Do less potent forms of pot try to draft off of more famous brands? Or does the market have a way of working itself out? It seems like a worthwhile market to study for someone enterprising.

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The US has two possible means along the line you mention. There are plant patents under 35 USC 161, or Plant Variety Protection under Chapter 57 to Title 7 of the US Code. They are administered, repectively, by the USPTO (Department of Commerce) and the Plant Variety Protection Office (Department of Agriculture). The line of demarcation between these two is the means by which the plants are reproduced.

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Merely as an aside, CAFC caselaw, as best I recall, long ago cast aside all notions of "morality" and the like in evaluating whether or not an invention may receive a patent. Hence, I am aware of no basis upon which an application for a plant patent can be denied that is addressed to a particular strain of marijuana. Of course, any plant invention must still meet all other requirements for patentability.

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Definitely a typo. But perhaps indicative of the amount of attention to detail and fact-checking here, to make an assertion in the very first paragraph (and still uncorrected as I post) that's prima facie wrong.

If all the articles here exhibited these characteristics this blog wouldn't be worth reading except as a source of cheap laughs. Fortunately they aren't (just some).

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And yet instead of saying "Hey, Mike, there's a typo, it should be Rainier", you chose the most snobbish way to make your point for no apparent reason.

Even if the brand didn't exist, or if he named "Shamawalagaba Brand Fuji Apples" (so as to not be "shilling for a brand"), his point still stands; yet you choose to use this meaningless contradiction as evidence of his lapse in journalistic prowess.

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...Why?

1) I didn't see you doing it.

2) I needed some up-to-date data points for my longitudinal study of epistemic closure's correlation to male aggression in partisan news sites. The general level of male rage around here makes it necessary to use a strong signal so it can be distinguished from the ambient background.

3) It was more respectful than accusing Masnick (with whom I am not on a first-name basis, unlike you) of writing while stoned.

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Here's what he was saying: Rainer Fruit Company is trademarked. Fuji Apples cannot be trademarked, however if you use the two together: Rainer Fruit Company(r) Fuji Apples, then that's as good as a trademark because of the specificity.

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Are you sure? I just Googled for it and it doesn't exist. Hopefully your reportage is more accurate.

It was a typo. I left out an i, which has now been fixed. It's not the end of the world. We make typos. Most people point them out, nicely, and we fix them.

Some people aren't so nice.

Either way, it wouldn't matter, because it was merely an example of how something could be a trademark. I could have just easily said "xkfjq;fj; Fuji Apples" and the point would have been just as valid.

yes, absolutely you get imposters in the pot market. Famous strain names get tossed around all over the place.

there's a lot of work being done by a lot of different groups to get something a little more standardized in place, usually based off of registered genetics. But in the end consumer protection comes down to experience and trust. If you didn't grow it, or know the grower, chances are, that chemdawg isn't.